NEW WHISTLEBLOWER BILL WILL PROTECT LEGISLATIVE EMPLOYEES WHO MAKE MISCONDUCT DISCLOSURES

On February 5, 2015, legislation was sent to Governor Brown to protect legislative whistleblowers – employees who disclose specified types of misconduct by members of the California Senate and Assembly or fellow employees of the Legislature. The bill, AB 403, prohibits interference with an employee making a “protected disclosure” and retaliation in response to such a disclosure. Governor Brown signed the legislation into law, which includes the following features:

1. The bill declares that it is necessary to establish a specific process so that legislative employees can report legal and ethical violations without fear of retribution. It states that such protections should apply in addition to those already contained in Labor Code Section 1102.5 and the California Fair Employment and Housing Act (“FEHA”).

2. The bill defines the term “protected disclosure” as “a communication by a legislative employee that is made in good faith alleging that a member of the Legislature or a legislative employee engaged in, or will engage in, activity that may constitute a violation of any law, including sexual harassment or of a legislative code of conduct.

3. The bill clarifies that a protected disclosure includes a disclosure that is protected under the FEHA or made to any of the following entities:

(a) the Senate Committee on Rules or its publicly identified designee;

(b) the Assembly Committee on Rules or its publicly identified designee;

(c) The Joint Committee on Rules or its publicly identified designee;

(d) a state or local law enforcement agency;

(e) a state agency authorized to investigate potential violations of state law; or

(f) an individual with authority over the legislative employee, or another legislative employee who has authority to investigate, discover, or correct the violation or noncompliance.

4. The bill prohibits a member of the Legislature or legislative employee from directly or indirectly using or attempting to use that individual’s official authority or influence for the purpose of interfering with the right of a legislative employee to make a protected disclosure. It makes a violation of such prohibition punishable by fines, imprisonment, and civil liability.

5. The bill clarifies that it should not be construed to authorize an individual to disclose information where the disclosure is prohibited by law.

6. The bill prohibits retaliation against a legislative employee for having made a protected disclosure.